In one case it was rap lyrics. In another, a two-word tweet. Both were crafted by students outside of school grounds, and in both cases, the schools suspended students for speech made off-campus.

At a time when social media has a hold on the majority of students who walk through a school’s doors, districts across the country are trying to gauge their responsibility policing speech that did not occur on school grounds.

Policymakers and courts are struggling both with free-speech issues (how far a school’s punitive authority extends over off-campus speech on social media) and with privacy issues (how far a school can intrude into the portions of a student’s social-media life that are not publicly viewable).

Fourteen states have implemented social media privacy laws protecting students so far, with various asterisks. Most cover only college students, while Louisiana, Michigan, Oregon, Rhode Island and New Hampshire have protections all the way down to kindergarten.

In New York, Assemblyman Jeffrey Dinowitz, a Democrat, is trying to pass legislation that covers online privacy for both students and employees. He said after reading about a case where a student was required to hand over account login information to an administrator, he felt the need to take action.

“I don’t think people’s privacy rights go down just because we have new ways of people communicating with each other,” he said.

The legislation is still in early stages, an aide in Dinowitz’s office said.

Some state laws, like Louisiana’s, are strict and bar access to any private profiles, including protections against administrators coercing a student to provide login information or access the account in front of them. Others, including in Illinois, leave more wiggle room for administrators to demand access during an investigation.

The discrepancies in these laws allude to the conflict administrators face when trying to straddle the line between anti-bullying efforts — which often involve cyberbullying through social media sites — and a student’s right to privacy.

Chad Marlow, who works on advocacy and policy at the American Civil Liberties Union, is currently working with a team to create a cohesive national guide for schools on how to make this compromise.

He said school officials often panic while trying to protect their students and wind up over-policing students’ speech during a time when they should be learning to express themselves.

“Students should also be able to engage in the exploration of ideas without feeling like it has to be broadcast to everyone who may be a school or government official,” Marlow said.

Oklahoma: A case study

The Student Press Law Center looked into policies for 10 randomly selected school districts across the state of Oklahoma, where constitutional questions have been raised about how far district policies purport to allow schools to regulate off-campus speech.

The Oklahoma State Department of Education doesn’t require school districts to have a policy on students’ online speech, and perhaps as a result, most schools surveyed had no formal written policies. Of the superintendents who were willing to speak with the SPLC, most erred on the side of implementing some level of school intervention when off-campus speech affects other students.

The schools without formal written policies tended to fall back on their anti-bullying policies, using those to gauge whether there was need for school interference. Mostly, the 10 districts had limited resources available to outline what they would consider offensive off-campus speech that would require administrative intervention.

In Coweta, Oklahoma, “any electronic or digital communication which can be considered inappropriate, harassing, intimidating, threatening or bullying to an employee or student of the district — regardless of whether the activity uses district equipment or occurs during school/work hours — is strictly forbidden.” Students could face suspension for violating this rule.

At least two other school systems in Oklahoma, Broken Arrow and Hilldale, have published policies on their books essentially identical to Coweta’s enabling schools to punish “inappropriate” speech even when it occurs off campus, without district equipment and unconnected with school functions.

District officials from those school systems did not return the SPLC’s requests for comment.

“School policies that incorporate the terms ‘inappropriate’ or ‘bullying’ are most likely unconstitutional,” said Clay Calvert, mass communication professor and director of the Marion B. Brechner First Amendment Project at the University of Florida. “Reasonable people would differ on the meaning of inappropriate. Would a reasonable student be able to know what speech is inappropriate? [Those terms are] unconstitutionally vague.”

Calvert said those terms are highly subjective — some people might find a joke inappropriate while others might find it humorous and that it makes a good point. As for bullying, he said, some might find students making fun of each other (“Your shirt sucks!”) to be bullying while others would say it goes further than that.

These policies would likely be struck down in court under the “void for vagueness” doctrine, Calvert said, which requires policies to state explicitly what conduct is punishable — so that reasonable people of ordinary intelligence would agree on the meaning.

Also, he said, vague policies can lead to arbitrary enforcement — a school official’s like or dislike of a student could play into whether the student’s online speech was found to be “inappropriate.”

“Vague policies give principals too much discretion in how they choose to enforce them,” Calvert said. “There’s too much discretion, too much wiggle room to enforce the laws unfairly.”

Several Oklahoma school districts have yet to formally outline a policy for their online speech codes, instead handling instances on a case-by-case basis that often starts with bringing all parties involved in for a mediated conversation.

In the Red Oak district, Superintendent Bryan Deatherage has been in discussions with his school board about implementing an official policy, which they do not currently have on the books. He said he still struggles with defining what speech he should intervene in.

“I think we are entitled to free speech,” he said. “At the same time, when it starts affecting the learning environment, then the school has the right to discipline or eliminate that type of speech.”

In the Idabel district, Superintendent Doug Brown said there is an “Internet acceptable use” form that students have to sign in order to interact with social media on school property, but that there are no district-wide hard-and-fast policies for what to do when students post something that would be forbidden by the contract when they’re not in school.

He has not handled any speech cases yet, but said he would intervene when multiple students are affected by the speech. Brown likened policing online speech to breaking up a fight on school grounds — that if bullying is involved, it is the school’s job to intervene.

“Schools, because of the social setting, we have to help minimize any negative changes in the environment,” he said.

Bret Rider, superintendent of the Turpin school district, has a district policy similar to Idabel: no official written statement, but a form of behavioral requirements that students and their parents must sign to use the Internet on school grounds. His philosophy on off-campus speech is to encourage the parents to be the disciplinarians. It isn’t always necessary for schools to weigh in on what is posted at home, he said.

“So much is thrown back on schools,” he said. “Sometimes it gets to the point that parents want us to do their work.”

The Rock Creek district has a similar philosophy on school interference with online speech that occurs at home: let the parents take care of it.

“Ultimately, the parent(s) or guardian(s) of minors are responsible for setting and conveying the standards that their child(ren) should follow,” the internet acceptable use form states.

Relocating the schoolhouse gate

School policymakers aren’t the only ones struggling to find the proper boundaries of school authority over online speech. The courts are wrestling with the issue, too — and so far, without any help from the U.S. Supreme Court, which has dodged three opportunities to clarify the law of online speech — most recently in February, when the justices declined to review a former high school rapper’s suspension from school for posting online a profane rap song.

Most courts have so far applied the same legal yardstick to schools’ authority over off-campus speech that they’ve applied for decades when students speak inside the school building: Can a school show that there was substantial disruption to school activities based on the speech?

In the landmark case for student speech in schools, Tinker v. Des Moines Independent Community School District, the Supreme Court ruled that schools can punish in-school speech only if it materially and substantially disrupted school activities. Students, the Court ruled, do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

When the case was decided in 1969, the schoolhouse gate was, literally, the door that led to the school. Now in the age of an online community, where students can post something on social media at home that can instantly spread to all their classmates, schools — and courts — are still trying to redefine where that gate is drawn.

In J.S. v. Blue Mountain School District, a Pennsylvania student was suspended 10 days for creating a parody profile of her principal. The 2011 Third Circuit ruling came down in favor of the student, since the district could not provide adequate proof that the profile disrupted school activities — but the judges couldn’t agree whether Tinker was or was not the proper level of school authority for speech on students’ personal off-hours.

Meanwhile, the Fourth Circuit came down in favor of limiting off-campus speech in the 2011 case of Kowalski v. Berkeley County Schools. A West Virginia student had created a MySpace chat group page titled “Students Against Sluts Herpes,” where students posted vulgar and offensive comments about another student. The court found no First Amendment violation in the school’s decision to punish the student who created the page, even though it was done off campus without using school resources.

In both cases, the Supreme Court declined the losing side’s petition for review. Some students’ rights advocates hoped that as lower courts continued to grapple with the issue of students’ social media speech, the justices would feel compelled to step in and clarify the law by hearing Bell v. Itawamba County School Board.

In Mississippi, former high school student Taylor Bell was suspended in 2011 for writing a rap song he posted to Facebook and YouTube that school officials say threatened two coaches. The song referenced complaints from female students who say they were sexually harassed by the coaches, with lyrics like “Looking down girls shirts / drool running down your mouth / you fucking with the wrong one / going to get a pistol down your mouth.” One of the coaches said he was concerned for his safety.

In August 2015, the entire Fifth Circuit court ruled in favor of the school district, holding that the Tinker standard can apply to off-campus speech because the song could be “reasonably forecast” to cause a disruption — it referenced the coaches by name, included events directly related to the school and was intended to reach the school’s community.

In a series of written dissents, four Fifth Circuit judges questioned whether Tinker should apply to off-campus speech.

“…Our Circuit should hesitate before carving out a new category of unprotected speech,” Judge Edward C. Prado wrote in a dissent, calling for the Supreme Court to weigh in.

In November, Bell’s attorneys petitioned the Supreme Court to hear the case. In late February, the justices declined to review the Fifth Circuit’s decision.

In another recent case, a Minnesota student brought suit after being suspended for a two-word tweet. This time, a student was also threatened with expulsion for tweeting “Actually, yeah” in response to an anonymous Twitter account claiming that he “made out” with a female teacher. He sent the tweet on a Sunday evening at his house.

Reid Sagehorn has since finished high school, and an investigation by the school district determined no inappropriate relationship between him and the teacher. Sagehorn sued both the district and the police chief, for saying publicly that Sagehorn could face felony charges, in June 2014. A federal judge later ruled that Sagehorn had a plausible argument that the district violated his free-speech and due-process rights and that he was defamed by the police chief.

In December 2015, Sagehorn received a $425,000 court-approved settlement.

In its argument, the school district had cited the 1986 Supreme Court case Bethel School District v. Fraser, which allows schools to discipline on-campus speech that is vulgar, lewd or plainly offensive — but in an important clarification, a federal judge wrote that the case is “clearly limited to on-campus speech.”

“School administrators are not censors of student speech at all times and all places, particularly on Sundays at home, like in this case,” said Sagehorn’s attorney Paul Dworak in an interview with the SPLC after the settlement was awarded.

SPLC staff writer Madeline Will contributed to this report.

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